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I know I’m overthinking the process at this point. I’m using different search terms to look at various court decisions. My latest search turned up several hundred decisions and I’ve started by looking at very recent (2012) decisions.

One of these is Noh v MCI (2012 FC 529)an interesting H&C decision for a family who overstayed their visitor visas and are now trying to obtain permanent residency. Cases such as this one are held up as an example of how the immigration system is broken. Their children (now both over 18) have lived the past 8.5 years in Canada, going to school and even University here. The parents are using their children’s needs as part of the rationale for why they should be allowed to remain in Canada. I’ll leave it to the reader to decide if they should be allowed – or not – because that isn’t what caught my eye as I read the decision.

[20] A decision-maker’s reliance on undisclosed extrinsic evidence is a breach of procedural fairness (see Tariku v Canada (Minister of Citizenship and Immigration) 2007 FC 474 at paragraph 2 and Qureshi v Canada (Minister of Citizenship and Immigration) 2009 FC 1081 at paragraph 14). Likewise, the opportunity to respond to a decision-maker’s concerns is also an issue of procedural fairness (see Karimzada v Canada (Minister of Citizenship and Immigration) 2012 FC 152 at paragraph 10 and Guleed v Canada (Minister of Citizenship and Immigration) 2012 FC 22 at paragraphs 11 and 12.

To be honest, I’ve been thinking that the issue the medical officer raised in her affidavit (the text she didn’t have in her original notes but recalled nine months after the fact) was a “reasonableness” standard but after reading this I begin to think that in fact this is an issue of law and thus must be judged on a standard of correctness.

The standard of correctness is a much higher standard than reasonableness and there is no deference given to the tribunal for decisions on the correctness standard – while there is such deference given on the reasonableness standard.

[24] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration)v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

The decision still falls short, because even if one accepts the medical officer’s opinion that the insurance wouldn’t provide coverage, it fails to address the PHSP that covers any legitimate medical expense.

The Companioni decision set the bar fairly high – so high that it is extremely difficult for anyone not already inside Canada to reach. Despite this, I put together a plan that I maintain anyone objectively reviewing the evidence would conclude actually met that rather high bar – it was a choate plan, the biggest concern voiced by the judge in that case. It did not rely upon a personal promise to pay, either, another potential issue. And, it demonstrated more than adequate funding to pay for a huge amount (approximately $68,000).

I seriously doubt that an impartial reviewer using the reasonableness standard would agree with the original rejection because if this plan cannot pass muster, no plan could pass muster and thus this whole process is a charade. Just reject people in my position categorically.

But what I submit really happened (where “really happened” means “on a balance of probabilities”) is that the plan was ignored. The rationale for that now are concerns that had never previously been voiced. Rather than bolstering the government’s case, it actually damages their credibility. Perhaps that is why thus far the government hasn’t really presented any actual legal argument against this application. My best guess is that they will do so in their filing on the 28th – complete with the advantage of providing us with no opportunity to reply.

As usual, it’s a waiting game. 39 days to go – for the hearing. Nobody knows how long until the decision.

Yesterday was the deadline for the government to file any remaining affidavits in the case and they availed themselves of the opportunity by filing one. Today I had an opportunity to read the actual affidavit, although I am waiting for copies of the exhibits attached to the affidavit.

In this case, it was the medical officer. On first reading, I must admit, it was actually somewhat convincing that she had actually done some real thinking before reaching her decision. Admittedly, there are some flaws in that rationale, but after mulling it over for some time, I realized that there’s one thing missing from all of this: what she’s saying isn’t supported by the written record. Thus, she is now supplementing her original written decision. That’s not supposed to happen. I have read numerous legal decisions and I’ve never read one in which it was the government adding new material to the record. I have read decisions in which the judge pointedly ignores new material submitted by the applicant, precisely because it is not material that was part of the original decision under review – and hence irrelevant. Thus, I would think the government cannot correct the record “after the fact” any more than I could do so. This is especially galling since they refused to consider information I actually submitted before they made their decision – “oh, sorry, we didn’t get that.”

So, she provides a nice rationale about how she thought insurance companies wouldn’t pay for medication when they found out that the provincial government had a program for doing so. She doesn’t offer any evidence of this, merely just her theory. While that sounds great, I realized that even if you accepted that rationale, it doesn’t explain her rejection of the private health care reimbursement program – known as a PHSP – which (at $20,000 per year) would still have been more than sufficient to pay the anticipated drug costs and which isn’t an insurance company – it’s an employer sponsored expense reimbursement plan.

Had she come back and expressed these concerns, we could have provided her with further evidence. I could have offered to opt out of the provincial health care plan, which in turn would then have made me ineligible for the very coverage she used to ban me.

Then I can see the clear influence of the government’s attorney – the medical officer claims she signed off on the new medical opinion, and that – voila – i am no longer medically inadmissible. Of course, she fails to mention that the medical opinion upon which she bases her decision is not even valid for my original case and cannot be used to make the decision in my case.

However, the fact the government is playing this game does tell me one thing: that for whatever reason, the government is actually worried they will lose on the merits. This nonsense about alternatives and what-not have no bearing on the original decision, they are red herrings intent upon distracting the Court.

My expectation is that the Court will see through this ruse, step back and say “this is all interesting, but it doesn’t repair the original decision, which is defective.” Even if you accept the affidavit from the medical officer, it says there were hidden concerns that were never expressed. That would mean the fairness letter wasn’t detailed enough for us to successfully address the concerns. That would violate the natural fairness required by the process.

That’s giving her the benefit of the doubt. What seems more likely is that the medical officer is trying to cover her tracks after the fact. I suspect she just looked at the material and said “none of this changes the medical diagnosis, so I don’t really care.”

We’re now just 1.5 months away from the hearing date. We will find out after that.

So my distraction turned into a bit of a search for case law regarding the meaning of the rules around the strict timelines laid down by the Federal Court of Canada. Why is this important? If the response is not timely and the Court does not grant an order then the material is excluded from consideration.

I also noticed another time issue: the “certified tribunal record” includes material that is dated AFTER the original decision, which runs counter to CIC’s own rules – the tribunal record should only include information/material that was considered by the decision maker. Interestingly, if the extra material had been present in December 2011, the visa officer should have reached a positive determination, since it indicates I am not medically inadmissible (a code of “M39” which means “medically admissible – excessive demand exempt, will require health and/or social services”).

One might think that a single day doesn’t really matter – but it does. It could be easily overcome by filing an application with the Court, asking for the change in schedule to be allowed and explaining why the extension is justified. Indeed, I read a case in which the attorney delivered the application to the Bailiff for service on the day the service was due but the Bailiff did not serve the papers until the subsequent day. The court did not consider the application record because it was not served in a timely fashion and the Applicant’s counsel did not ask for an extension of time to file.

I have seen signs of game playing in civil litigation before, so I shouldn’t be surprised at these shenanigans, but it is a bit shocking when it is my case to which they are being applied.

Then again, it makes me wonder: if the government had a strong case here, why would they play these games. This really does suggest they expect to lose. In some ways, having the Court strike down 38(1)(c) might be a blessing for the government because it would get them out of the medical inadmissibility business, which does seem to create a lot of grief for them.

We will know on or after October 17, 2012. I don’t see that deadline changing.

At times I am guilty of “over-thinking” the problem. Spending a bit too much time looking at the evidence and attempting to speculate on the “holes” in the evidence. It would appear that I have done just that with respect to the recent oddity in the Registry record. On the other hand, it turns out I was right in at least one important speculative aspect.

At any rate, the Registry has now updated and there are a number of records. I followed up by requesting copies of the materials submitted by the government from my attorney’s office, as my attorney is out of the office this week.

The Respondent’s council conveniently enough noticed the omission of the medical file in the “certified tribunal record” because it was missing the medical file. Conveniently enough she happened to have a copy of my medical file, which she submitted to the court and apologized for the oversight.

Just for the record, there is a reasonable sized section in ENF 9: Judicial Review which is the CIC document describing the process, with particular emphasis on the responsibilities of CIC to comply with the legal requirements. Dry reading, I’m going to reproduce the bulk of it here because it will help establish context for my comments:

The order granting leave for judicial review constitutes an order pursuant to Rule 17 of the Federal Court Immigration Rules whereby the tribunal (decision-maker) is required to produce the tribunal record within the time frame specified in the Court order. In cases where the Minister or an officer designated by the Minister is the decision-maker, the Rule 17 order will be directed to the CIC or the CBSA office responsible for making the decision.
Upon receipt of the order granting leave, the decision-maker or the official assigned to the task must immediately prepare and send two certified copies of the tribunal record to the Court Registry and one certified copy to each of the parties (the applicant’s counsel and the Department of Justice). The tribunal record will consist of the following documents numbered consecutively:
(a) the decision or order that is the subject of the application and the written reasons, if any, or a notice that no written reasons were issued;
(b) all papers relevant to the matter that are in the tribunal’s possession or control;
(c) any affidavits or other documents filed or considered during the course of any hearing, interview or process that resulted in the decision or order; and
(d) a transcript if there is one of any oral testimony given during the hearings, interviews or processes that led to the decision or order.
It is imperative that the tribunal record is produced as aforementioned no later than the date specified in the Court order. All papers relevant to the matter specified in paragraph (b) above refer to all the file material that the decision-maker referred to, considered or relied upon before making their decision. Such material would normally include the officer’s summary report or interview/review notes, submissions and any documents submitted by the client and or counsel and any other file material referred to or considered by the decision-maker, including FOSS or CAIPS notes. Any material or file information that was not considered by the decision-maker or postdates the decision date is not required and should not be included in the tribunal record. The person preparing the tribunal record should consult with the decision-maker where there are doubts as to what material was considered in making the decision that is being challenged.

There are a few key points here: first, the tribunal record has to be prepared by the tribunal (CIC in this case) and not casually submitted from materials that just happened to be sitting on the desk of legal counsel.

Second, it’s a certified copy – how can counsel certify that these are the materials that were reviewed by the officer in rendering her decision? This seems dubious at best.

Third, the medical records included – as I suspected they would – material that would not have been considered in the initial rejection (e.g., the medical that I had done in February for the new application.) Indeed, CIC’s counsel wasn’t even discreet about including it as it is the first material one sees when one opens up the supplementary materials.

Of course, this is the same barrister who argued in previous filings that we had inappropriately submitted materials that were not before the decision maker. Indeed, I just commented on this fact in the CAIPS notes. Perhaps I have a delusional sense of fairness, but I would think that the government cannot both argue we are barred from submitting new material at the same time they are submitting new material. Of course, the court should not consider the new material – but the government has certified that this is material considered in making their decision!

I cannot imagine the Court won’t notice this poorly executed legerdemain. I would think there are two likely outcomes: either refuse to consider any of the new material, which seems to make sense but for which I have not yet found supporting case law, or all the new material will be considered. I suppose there are other options: basically various forms of sanction. I’ve never read of a case in which CIC submitted new materials to the Court.

So, bottom line: there was no second court order, it was just fulfillment of the first order. However, CIC’s counsel did manage to “sneak in” the new medical, thus reinforcing the idea that this is all just a waste of time for the Court. Thus, I am guilty of over thinking the problem. It is an easy mistake to make while caught up in this imbroglio.

I’ll find out more next week when my attorney returns, because it really is up to him on how to deal with this latest development.